When we lose a loved one, it is natural to want to do everything within our power to bring those responsible to justice. This can involve filing a wrongful death claim and a survival action. While these claims sound similar, they have important differences.
A survival action is often filed alongside a wrongful death claim and pertains to the damages experienced by the deceased person after they were injured but before they passed away. You should file both claims if you believe your loved one’s death was caused by someone else’s wrongful, negligent, or criminal behavior. While family members may recover damages in both claims, they usually need the estate representative to file the case. Damages are also distributed according to New York’s estates and trusts laws. You have a limited time to file your case, and the deadline begins counting down on the day of your loved one’s passing.
If you lost a loved one because of someone’s wrongful actions or omissions, our Westchester wrongful death lawyers can help you get justice and fair compensation. For a free case review, call The Martello Law Firm, PLLC at (914) 685-6950.
Why File a Wrongful Death or Survival Action Case in NY?
Wrongful death cases and survival actions are not the same, although they often go hand-in-hand. A wrongful death lawsuit involves suing for the death of a loved one and recovering damages related to their death and the resulting fallout. A survival action focuses on the damages and injuries sustained by the deceased person that they could have sued for themselves had they survived. If you are considering pursuing a wrongful death claim, you should speak to our Yonkers wrongful death lawyers about filing a survival action.
Wrongful death claims are more about how your loved one died and holding the responsible parties liable for your grievous loss. Damages encompass only economic losses affecting you and your family, such as pecuniary damages related to the deceased person’s income or services. Non-economic damages related to your pain, suffering, or grief are typically unavailable.
A survival action may be filed along with a wrongful death claim, and they often feel as if they are one claim. In truth, they are separate claims they cover very similar issues. A survival action covers the damages and losses experienced by the deceased person before they passed away. For example, suppose your loved one lay in a hospital bed for weeks while receiving expensive medical treatments before passing away. In that case, you can sue for those medical expenses and your loved one’s pain and suffering.
Damages Available in Wrongful Death and Survival Action Cases in NY
Damages differ between wrongful death claims and survival actions. While wrongful death claims focus on the various pecuniary losses associated with losing a loved one, survival actions may include certain non-economic damages for your loved one’s pain and suffering before they passed away. Our White Plains personal injury lawyers can help you sort through your damages to get the most compensation possible for your family.
Wrongful Death Damages
In a wrongful death lawsuit, damages tend to focus on the expenses and losses incident to the deceased person’s passing. Our NY wrongful death attorneys can help you determine what damages are available in your case. Damages may include the cost of the funeral and burial expenses of your loved one. They can also include other pecuniary losses. For example, if you lost a spouse who contributed an income or valuable services to your household, you can claim those losses as part of your damages.
Non-economic losses are usually not available in New York wrongful death cases. The loss of companionship, consortium, and similar elements of grief usually do not factor into damages calculations. However, you can claim valuable services your loved one provided that you now must pay to replace. For example, if your loved one was also your full-time caregiver, you can claim the cost of caregiving expenses as part of your damages.
Survival Action Damages
In a survival action, the damages pertain to the losses and injuries experienced by the deceased person that they could have claimed themselves had they survived. In most cases, these damages include injuries and losses sustained when your loved one was injured before they passed away. If your loved one did not pass away immediately, these damages may be quite high and can significantly boost the overall value of your case.
Damages in a survival action can include medical bills and other costs incurred by the deceased person. For example, if you lost someone in a car accident, you can claim the medical costs and value of their destroyed vehicle as part of the damages. You can also claim any pain and suffering your loved one experienced before they passed.
Who Can Recover Damages in Wrongful Death and Survival Action Claims in NY?
A deceased person’s estate representative must file a wrongful death case or a survival action. The representative may or may not be a family member. While family members are often appointed as estate representatives after someone passes, the representative could also be an attorney or anyone else.
Family members may recover damages according to a specific hierarchy imposed by E.P.T. Law § 5-4.4(a) and E.P.T. Law § 4-1.1(a). If the deceased person leaves behind a surviving spouse and any children, the spouse takes $50,000, and the remainder is divided equally among the spouse and the children. If the distributees include a spouse with no children, all damages are awarded to the spouse. If there is no surviving spouse, but the deceased person had children, all damages are equally divided among the children.
In somewhat more unusual circumstances, the deceased person’s parents may recover damages if there is no surviving spouse or children. If no parents, spouses, or children are left behind, the damages may be divided among siblings. Grandparents, aunts, and uncles might also recover under more unusual circumstances where the deceased person is not survived by any children, spouse, parents, or siblings.
How Long You Have to File a Wrongful Death or Survival Action Lawsuit in NY
According to E.P.T. Law § 5-4.1(1), the representative of your loved one’s estate must file a wrongful death claim within 2 years of the deceased person’s death. However, if your loved one’s death is related to the terrorist attacks on September 11, 2001, the case must be filed within 2 years and 6 months. If there is a criminal prosecution against the defendant in your case, you have 1 year from the completion of the criminal trial to file your claim if the standard limitation has passed.
A survival action pertains to the personal injuries experienced by the deceased person before death. As such, a survival action abides by the statute of limitations for personal injuries. According to C.V.P. Law § 214(5), you have 3 years from the date of your loved one’s injuries to file a survival action. Our Mount Vernon personal injury lawyer can help you get your claims started in a timely manner.
Contact Our NY Wrongful Death Attorneys for a Free Case Review
Your deceased loved one and your family deserve justice. Our New Rochelle personal injury attorneys can help you get the fair compensation that will hopefully bring a sense of closure to your ordeal. For a free case review, call The Martello Law Firm, PLLC at (914) 685-6950.